When can Utah courts impose Rule 37 sanctions for discovery violations? Bailey v. Bailey Explained

The Utah Court of Appeals recently clarified the important distinction between Rule 26(d) and Rule 37(b) sanctions in Bailey v. Bailey, providing crucial guidance for practitioners handling discovery disputes in family law and civil cases.

Background and Facts

Nine years after their divorce, Amy Bailey petitioned to modify child support, claiming her ex-husband Danny’s income had significantly increased from the original $8,837 monthly determination. During discovery, Danny experienced software problems completing his 2020 tax return and requested a continuance. The court granted the continuance but set no specific deadline for the tax return disclosure. Danny completed the return and disclosed it to Amy twenty-nine days before the rescheduled trial—complying with the court’s pretrial order requiring disclosure “at least 28 days before” trial. However, Danny had waited approximately two months after completing the return before disclosing it to Amy.

Key Legal Issues

The central issue involved whether the trial court properly applied Rule 37(b) sanctions against Danny for his delayed supplemental disclosure. The court also had to determine whether Amy’s expert witness could testify without providing a requested expert report. These issues highlighted the critical differences between sanctions available under Rule 26(d) versus Rule 37(b).

Court’s Analysis and Holding

The Court of Appeals held that Rule 37(b) sanctions are only available for violation of a specific court order, not for violations of rule-based disclosure requirements. Since Danny complied with the court’s pretrial order by disclosing his tax return at least twenty-eight days before trial, he had not violated any court order. His delay in supplementing his disclosure after completing the return was potentially a Rule 26(d)(5) violation, which carries narrower, automatic sanctions limited to excluding the undisclosed material—not the broader sanctions imposed by the trial court.

The court also found error in allowing Amy’s forensic accountant to testify as a “factual witness” when he provided expert testimony based on specialized knowledge without having provided the requested expert report. The testimony about tax return interpretations constituted expert testimony requiring proper disclosure under Rule 26(a)(4)(B).

Practice Implications

This decision provides essential guidance for discovery practice. Rule 26(d) sanctions are “automatic and mandatory” when disclosure requirements are violated, but they are limited to excluding the undisclosed material. Rule 37(b) offers broader sanctions but requires violation of a specific court order, not just rule violations. Practitioners must carefully analyze whether their opponent violated a court order or merely failed to comply with rule-based requirements when seeking sanctions. The decision also reinforces that expert witnesses cannot circumvent disclosure requirements by testifying as “fact witnesses” when their testimony is based on specialized knowledge.